Sunil Sharma & Anr vs Raghunath Rai & Anr
2011 Latest Caselaw 2124 Del

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*              IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                    Date of decision: 20.04.2011

+                            CONT.CAS.(CRL) 3/2010


       SUNIL SHARMA & ANR                            ..... Petitioners
                      Through: Mr. Rakesh Prabhakar with Ms. Amrita Kumari
                             and Ms. Ritu Yadav, Advocates.

                                     versus


       RAGHUNATH RAI & ANR                         ..... Respondents

Through: Mr. Rajiv Awasthi, Advocate.

CORAM:

       HON'BLE MR. JUSTICE S. RAVINDRA BHAT
       HON'BLE MR. JUSTICE G.P. MITTAL

1.     Whether the Reporters of local papers        YES
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?           YES

3.     Whether the judgment should be               YES
       reported in the Digest?


MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)

1. In this petition, the petitioner seeks orders to initiate criminal contempt proceedings

against the respondents.

2. The brief facts necessary for disposing of this petition are that pursuant to an agreement

for purchasing an immovable property of the ground floor being No.E-227, Greater Kailash-I,

New Delhi, the respondents complaining breach of the contract by the present petitioners

predecessor instituted a suit against them on the file of this Court being civil suit no.CS(OS) CONT.CAS(CRL).No.3/2010 Page 1 1394/1979. The suit was decreed on 16th July, 1999 and the defendant Sh.Jageshwar Prasad

Sharma was directed to execute a sale deed, as well as hand over possession of the premises.

Being aggrieved, the said defendant preferred an appeal being RFA(OS) No.54/1999. The

Division Bench had suspended operation of the decree during the pendency of that appeal.

3. The original appellant, Sh. Jageshwar Prasad Sharma died on 18.02.2008. To cure the

record, the legal representatives of the said original defendant/appellant, who included the

present petitioners, filed an application being CM No.3828/2008. The Division Bench issued

notice on 14.03.2008 to the respondent/plaintiff. Eventually, the application was allowed on

16.07.2008.

4. Apparently, the appeal was not being prosecuted diligently, as is evident from the orders

of the Court dated 23.04.2009 and 02.07.2009. On both these occasions, the petitioner was

present in Court and sought time to engage a new counsel. In the circumstances, when the

appeal was listed for hearing on 06.07.2009, the Division Bench dismissed it in the following

terms:-

"The matter has been called out several times, but there is no appearance on behalf of the Appellant. On the last date of hearing, an adjournment was granted on the request made by the Appellant.

RFA(OS) 54/1999 stands dismissed for non-prosecution. All interim orders are recalled."

5. Upon the dismissal of the appeal, the respondent moved an execution proceeding to take

possession of the premises on 18.08.2009. Notice was issued in those proceedings. The

execution petition mentioned the original defendant, as the judgment debtor. On the next date of

hearing i.e. 15.10.2009, the Court recorded as follows:-

"Judgment debtor has been served on 11th September, 2009. No one appears when the matter is called.

CONT.CAS(CRL).No.3/2010 Page 2 Issue warrants of possession of ground floor of property bearing No.E-227, Greater Kailash-1, New Delhi in view of the judgment and decree passed by this court in CS(OS) No.1394/1979 on 16th July, 1999.

List on 4th December, 2009 for direction."

6. The petitioners contend that the respondent/original plaintiff willfully suppressed the true

facts and did not implead anyone of them despite being aware about the death of the original

defendant who was the appellant in the appeal before the Division Bench. Learned counsel relies

upon the order of 16.07.2008 whereby the application for substitution was allowed and contends

that on account of these facts, the respondents were duty-bound to implead the legal

representatives/successors-in-interest of the original appellant. By not doing so and disclosing

the name of the deceased appellant, they sought to take advantage, which subsequently they did

by obtaining warrants of possession, which were executed. It is submitted that this conduct is

contemptuous and abuse of process of Court, which ought to be dealt with appropriately by

initiating criminal contempt proceedings.

7. The respondents in reply and also through their counsel in submissions made during the

oral hearing contend that there was in fact no intention to interfere with the Court proceedings or

present any willful distorted picture. The Process Server's report of 16.09.2009 is relied upon; a

certified copy of the same has been placed on the record. It is pointed out that in an earlier

report, the Process Server had noticed that the petitioners herein could not be served at the

address indicated. However, the subsequent report clearly mentions that someone accepted the

summons/notice. It is also pointed out that even though warrants of possession were issued on

15.10.2009, they were in fact executed in November, 2009 and even at that stage none of the

petitioners objected and, in fact, only sought for extension of time. All this clearly indicated that

the petitioners were aware about the execution proceedings and did not choose to appear in

CONT.CAS(CRL).No.3/2010 Page 3 Court. They did not even take steps to prosecute their appeal or seek its revival and moved an

application for restoration only in January, 2010.

8. This Court has considered the materials on the record and the submissions. What is

apparent is that the petitioners were impleaded as legal representatives instead of original

appellant some time in 2008. It is no doubt true that the respondent did not subsequently

implead the petitioners, in the proceedings when the possession of the premises was sought to be

taken by them. However, it is noteworthy that the present petitioners were not diligent in

pursuing their appeal, which led to its dismissal on 06.07.2009. The Division Bench

subsequently noted that despite the grant of final opportunity, the appellant had not taken

appropriate steps and consequently dismissed their appeal. Ordinarily, a decree is executable

from the date when it is drawn. Notice is not required to be served on the opposite party. In this

case, the Court had stayed the operation of the decree apparently immediately after the judgment

was pronounced sometime in 1999. However, that stay stood vacated and merged with the final

order when the appeal stood dismissed on 6th July, 2009. In the circumstances, the decree

became executable immediately and the respondents can well contend that notice was not even

required to be served on the petitioners. Furthermore, the petitioners do not appear to have taken

any steps to impeach the credibility of the service report which persuaded the Court to issue

warrants for possession on 15.10.2009.

9. Lastly, the petitioners also do not appear to have registered any protest to formal

obstruction while the warrant was executed sometime in November, 2009. The learned counsel,

no doubt, stated that the petitioners were left with no choice. Had the petitioners desired to

register their protest, nothing prevented them from doing so and stating that they were unaware

of the execution proceedings.

CONT.CAS(CRL).No.3/2010 Page 4

10. Having regard to this conspectus of facts, the Court is of the opinion that the petition is

lacking in merits. It is accordingly dismissed.

                                                                   S. RAVINDRA BHAT,J



                                                                           G. P. MITTAL, J
       APRIL      20, 2011
       vk




CONT.CAS(CRL).No.3/2010                                                                    Page 5